Nieves v. North River Insurance Co.
49 So. 3d 810
| Fla. Dist. Ct. App. | 2010Background
- Ana Nieves, as personal representative of Joaquin Nieves, sues North River after Megatran’s primary Liberty Mutual policy lacked UM coverage and Nieves was killed in an automobile accident.
- North River issued a North River umbrella policy with an endorsement titled 'Important Notice' offering excess UM/UIM coverage up to $1,000,000, contingent on purchasing primary UM coverage.
- North River stated excess UM/UIM coverage would be at no additional cost but only if Megatran maintained $1,000,000 primary UM coverage in its automobile policy.
- North River denied UM/UIM coverage under the umbrella policy because Megatran did not maintain primary UM coverage.
- Nieves filed a declaratory action seeking a declaration that North River violated §627.727(2) and sought policy reform to provide $1,000,000 UM/UIM coverage.
- The trial court dismissed the complaint; Nieves appeals arguing North River failed to make available the required excess UM/UIM coverage unconditionally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §627.727(2) require an unconditional offer of excess UM/UIM coverage? | Nieves contends the statute requires an unconditional offer without dependency on primary coverage. | North River argues it satisfied §627.727(2) by making excess UM/UIM available, albeit conditioned on primary UM coverage. | No; the statute requires making available, not an unconditional offer. |
| Did North River comply with §627.727(2) by offering excess UM/UIM contingent on primary coverage? | Nieves asserts conditional offering fails statutory duty and seeks reform. | North River contends conditional offer satisfies the 'make available' requirement and remains consistent with the statute’s structure. | Yes; conditional offer complied with §627.727(2). |
Key Cases Cited
- Ferreiro v. Philadelphia Indemnity Ins. Co., 816 So.2d 140 (Fla. 3d DCA 2002) (distinguishable; excess offer not made vs. offered)
- O’Brien v. State Farm Fire & Casualty Co., 999 So.2d 1081 (Fla. 1st DCA 2009) (excess/un umbrella policy not exempt from offer duty; notice to make available)
- Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643 (Fla. 3d DCA 1998) (excess insurance must notify insured of availability)
- Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971) (UM statute remedial; broad, liberal construction)